Nova Scotia Annotated Civil Procedure Rules

Part 17 - Administration

Rule 88 - Abuse of Process

Educational Notes

This Rule provides a procedure for controlling abuses of the court’s process and allows for a wide range of remedies, including dismissal or judgment, a stay, indemnification, striking or amending a pleading, expunging or sealing an affidavit, or an injunction. Vexatious litigants may be restrained from commencing further proceedings without permission of the court (R.88.02). Rule 88.05 allows the court to determine whether a claim amounts to an abuse of process before the rest of the claim is determined.

Rule 88 makes clear that unsustainable pleadings should be challenged under Rule 13 – Summary Judgment, rather than as an abuse of process.

88.02 - Remedies for abuse

88.02 Remedies for abuse

(1) A judge who is satisfied that a process of the court is abused may provide a remedy that is likely to control the abuse, including any of the following:

(a) an order for dismissal or judgment;

(b) a permanent stay of a proceeding, or of the prosecution of a claim in a proceeding;

(d) an order to indemnify each other party for losses resulting from the abuse;

(e) an order striking or amending a pleading;

(f) an order expunging an affidavit or other court document or requiring it to be sealed;

(g) an injunction preventing a party from taking a step in a proceeding, such as making a motion for a stated kind of order, without permission of a judge;

(h) any other injunction that tends to prevent further abuse.

(2) A person who wishes to make a motion under section 45B of the Judicature Act may do so by motion in an allegedly vexatious proceeding or a proceeding allegedly conducted in a vexatious manner, or by application if there is no such outstanding proceeding.

N.S. Gaz. Pt. 1, 12/16/2009

Index Terms

Abuse of process, expunging or sealing affidavit
Abuse of process remedied by amendment
Abuse of process remedied by injunction
Costs consequences for abusive steps in proceeding
Dismissal of abusive proceeding
Expunging or sealing for abuse of process
For abuse of process
Indemnity for expense caused by abuse
Injunction to control abusive litigant
Losses caused by abuse of process
Of proceeding for abuse of process
Pleadings, striking or amending where abusive
Remedies for abuse
Stay of abusive proceeding
Striking or amending where abuse of process

Annotations

This application was made under Civil Procedure Rules (1972), Rule 14.25. Several parties in several related actions applied to have the plaintiff NBFL’s pleadings struck as an abuse of process and proceedings stayed. This complex litigation had already resulted in settlements between NBFL and a number of parties. The applicants argued the motion should be granted on the basis of: NBFL’s conduct following a dismissal of their motion to amend pleadings (eg., motions they’ve brought and the refusal to entertain settlement with the applicants); their refusal to disclose the terms of the settlement agreements; and Warner, J.’s findings of bad faith in dismissing the motion to amend. Held, application denied; costs to NBFL in the cause. NBFL brought what appeared to be legitimate motions on their face, and they were still pending before the court. There is no obligation on a party to entertain settlement. While the court has a lingering concern over NBFL’s tactics, that is not the test for abuse of process and the ultimate remedy of a stay. This was not one of those clearly exceptional cases warranting the drastic remedy of a stay. Even if there had been an abuse of process, a stay should only be granted if no other remedy can remove the abuse. Here other actions were taken at prior proceedings which had the effect of remedying any potential abuse. The outcome of pending motions may cast NBFL in a different light, but they must be decided on their merits before any conclusions can be made in that regard.

Full text: National Bank Financial Ltd. v. Potter et al., 2010 NSSC 214

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